November 27, 2011

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The Perry campaign's borrowing of three clips from a SuperPAC ad for use in a campaign video was a novel foray into the gray area of campaign finance law, and so I asked the experts on Rick Hasen's excellent and disputatious election law listserv for their views on it. They were not unanimous on the question, but Perry is clearly treading in some uncharted legal waters.

"With virtually all fundraising limits and prohibitions hanging on the necessity of independence between the super PAC and the Perry campaign, using super PAC footage for a campaign ad pushes the concept of independence to new boundaries," emailed Ken Gross, an election lawyer at Skadden Arps.

David Mason, vice president at the political data firm Aristotle International, wrote that "whatever is going on in terms of the Perry campaign using Super PAC footage, it is simply not addressed by the coordination regulation."

"That is not to say there are no FECA implications to a candidate using Super PAC footage. If a campaign is given footage for no charge, the footage could be an in-kind contribution to the campaign. A campaign could pay for the footage (raw footage typically costs way less than the cost of finishing and broadcasting), or, in this case, according to the spokesman you quote, gotten it from a public source," he wrote.

Not everyone was concerned: James Bopp, a lawyer who has crusaded with some success against campaign finance regulation, emailed that there is "no problem."

"A coordinated expenditure has two elements -- content of the ad and conduct of the candidate and spender," Bopp wrote. "If a spender uses a candidate's campaign material, it meets the content requirement. But the opposite does not. Thus, if the allied superPAC's material is in the public domain, then anyone can use it, including the candidate."

And Hasen, a law professor who favors more robust campaign finance regulation, emailed that it is a marker of the weakness or the current legal regime.

"Proving coordination will be difficult and certainly any complaint wouldn't be resolved by the FEC before the 2012 elections. To me the more interesting point is how much superPACs can help campaigns *without* violating the coordination rules. It also underscores the vacuousness of the Supreme Court's flat statement in Citizens United that independent spending can never corrupt or create the appearance of corruption," he wrote.

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